Citation NR: 9632263
Decision Date: 11/15/96 Archive Date: 12/02/96
DOCKET NO. 94-20 575 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Whether new and material evidence has been submitted
sufficient to reopen the veteran’s claim for entitlement to
service connection for post traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
J. A. Markey, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1967 to May 1970.
This matter came before the Board of Veterans Appeals (Board)
from a July 1993 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Hartford, Connecticut
determining that new and material evidence had not been
submitted sufficient to reopen the veteran’s claim for
entitlement to service connection for PTSD. A notice of
disagreement was received in March 1994. A statement of the
case was issued in April 1994. A substantive appeal was
received from the veteran in April 1994.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in substance,
that new and material evidence has been submitted to reopen
the veteran’s claim for entitlement to service connection for
PTSD, and that the veteran should be afforded a examination
in order to determine if the veteran currently suffers from
PTSD.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
been submitted sufficient to reopen the veteran’s claim for
entitlement to service connection for PTSD.
FINDINGS OF FACT
The evidence submitted regarding the veteran’s claim for
entitlement to service connection for PTSD subsequent to an
April 1990 Board decision which found that new and material
evidence had not been submitted sufficient to reopen this
claim, is new and probative, and does present a reasonable
possibility for a changed outcome of this claim.
CONCLUSION OF LAW
Evidence submitted in support of the veteran’s attempt to
reopen the claim for entitlement to service connection for
PTSD is new and material, and the claim is reopened.
38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R.
§ 3.156(a) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In Board decisions dated in December 1979 and June 1982,
entitlement to service connection was denied for an acquired
psychiatric disorder. In Board decisions dated in July 1986
and December 1987, the veteran was denied entitlement to
service connection for PTSD. The July 1986 decision turned
on the fact that while one medical report reviewed noted a
diagnosis of PTSD, this report did not contain a reference to
any signs or symptoms of PTSD, and that further, the
predominant diagnosis at that time was a personality
disorder. The Board concluded that the evidence did not
demonstrate that the veteran had PTSD. In the December 1987
decision, the Board found that although the newly submitted
evidence included at least one diagnosis of PTSD, specific
stressors incurred while the veteran was in combat in Vietnam
were not included in the clinical data. Hence, the Board did
not find the evidence convincing that the veteran had PTSD at
that time.
In the most recent Board decision, dated in April 1990, it
was found that although newly submitted evidence indicated
that the veteran served in combat while in Vietnam, the
current medical evidence did not demonstrate that the veteran
suffered from PTSD at that time. In fact, the Board noted,
the diagnosis noted on the most recent examination report was
bipolar disorder. With respect to combat related evidence,
the Board points out that a copy of DD Form 215 (correction
to DD 214), issued in August 1988, notes that the veteran was
awarded the Vietnam Service Medal with 4 devices, the Combat
Action Ribbon, the Meritorious Unit Citation Ribbon, the Navy
Commendation Ribbon, the Republic of Vietnam Meritorious Unit
Citation (Gallantry Cross Medal Color with Palm), and the
Republic of Vietnam Meritorious Unit Citation (Civil Actions
Medal, First Class Color with Palm).
The Board notes that these decisions are final based on the
evidence then of record. However, the law and regulations
provide that if new and material evidence has been presented
or secured with respect to a claim which has been disallowed,
the claim may be reopened and the former disposition
reviewed. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R.
§ 3.156(a) (1995).
The United States Court of Veterans Appeals (Court), in
Manio v. Derwinski, 1 Vet.App. 140 (1991), established a two-
step analysis which must be applied in cases in which a
claimant seeks to reopen a claim which has become final.
First, there must be a determination as to whether there is
“new and material” evidence to reopen the claim. “New and
material” evidence is evidence not previously submitted, not
cumulative or redundant, and which by itself, or along with
evidence previously submitted, is so significant that it must
be considered to fairly decide the merits of the claim.
38 C.F.R. § 3.156 (a) (1995). If there is such evidence, the
claim must be reviewed on the basis of all of the evidence,
both old and new. A decision regarding either step is
appealable.
Recently, the Court, in Evans v. Brown, No. 93-1220 (U.S.
Vet. App. August 1, 1996), noted that
the first step of the Manio two-step
process as to a claim to reopen involves
three questions: Question 1: Is the
newly presented evidence “new” (that is,
not of record at the time of the last
final disallowance of the claim and not
merely cumulative of other evidence that
was then of record...? Question 2: Is
it “probative” to “the issue[s] at
hand”...(that is, each issue which was a
specified basis for the last final
disallowance...)? Question 3: If it is
new and probative, then, in light of all
of the evidence of record, is there a
reasonable possibility that the outcome
of the claim on the merits would be
changed...? [A]ffirmative answers to
both questions 2 and 3 - involving the
probative nature of the
“new” evidence and the reasonable
possibility of outcome change,
respectively - are required in order for
“new” evidence to be “material”...
Furthermore, the Court has stated that in determining whether
the evidence is new and material, the credibility of the
newly presented evidence is to be presumed. Justus v.
Principi, 3 Vet. App. 510 (1992). In this case, the Board is
required to give consideration to all of the evidence
received since the last disallowance of this claim on any
basis, or, in this case, since the Board decision dated in
April 1990.
Among the evidence associated with the file subsequent to the
April 1990 decision are psychotherapy reports from Amy
Ehrlich Charney, Psy.D., Licensed Clinical Psychologist. In
her most recent report, dated in April 1995, Ms. Charney
notes a history of the veteran witnessing traumatic events
while serving in Vietnam, including a friend getting hit with
a round of phosphorus, and seeing dead and rotting bodies in
the aftermath of an attack on a Vietnamese village. The
report notes that the veteran experiences infrequent
nightmares, and has had a difficult time adjusting back into
society. Three failed marriages and an inability to maintain
even part-time employment, among other things, were noted as
examples of this difficulty. Ms. Charney concluded that
these symptoms and history supported the veteran’s claim that
he suffers from PTSD.
The Board finds that this evidence constitutes new and
material evidence sufficient to reopen the veteran’s claim
for entitlement to service connection for PTSD. In this
regard, the Board points out that it is “new” and “probative
to the issue at hand”, in that it indicates a current
diagnosis of PTSD (with adequate stressors), Justus, and, in
light of all of the evidence of record, presents a reasonable
possibility that the outcome of the claim on the merits would
be changed. In other words, the record now contains a recent
diagnosis of PTSD and conclusive evidence of the veteran’s
claimed inservice stressors, in light of the citations
awarded him as a result of his service. See 38 C.F.R.
§ 3.304 (f)
Accordingly, the Board concludes that the veteran has met his
burden of submitting new and material evidence, as these
terms are defined, sufficient to reopen his claim for
entitlement to service connection for PTSD. The Board must
conclude, however, that further adjudication of this matter
may not be undertaken at this time.
The Court has found that if action by the Board involves a
question not previously addressed, and such action would be
prejudicial to the veteran, further due process must be
provided. Bernard v. Brown, 4 Vet. App. 384 (1993). In this
case, the recent action by the RO has been with respect to
the preliminary question of whether to reopen the veteran's
claim. Specifically, the veteran and his representative have
made argument as to the issue of new and material evidence
and not the substance of the claim. In light of this fact
and because of the determination above, additional action on
this claim is required.
ORDER
New and material evidence has been submitted sufficient to
reopen the veteran’s claim for entitlement to service
connection for PTSD. To this extent, the appeal is granted.
REMAND
It has been determined that the veteran submitted new and
material evidence sufficient to reopen his claim for
entitlement to service connection for PTSD. As such, this
claim must be reviewed on a de novo basis, that is, on the
basis of all of the evidence, both old and new. Manio. The
evidence of record consists, in part, of the veteran’s
service medical records, VA medical records, and private
medical records.
Further, if the Board determines, while reviewing a claim,
that further evidence or clarification of the evidence is
essential for a proper appellate decision, it shall remand
the case to the agency of original jurisdiction, specifying
the action to be undertaken. 38 C.F.R. § 19.9 (1995). In
this regard, the Board notes that a review of the record
reveals that the veteran has been diagnosed with psychiatric
(including PTSD) and personality disorders, and that he has
not been afforded a contemporaneous VA psychiatric
examination. The Board finds that in order to fully address
the substance of the present appeal, further evidentiary
development is in order, in that the veteran should be
afforded a psychiatric examination in order to determine
whether the veteran currently suffers from a psychiatric
disorder, specifically PTSD.
In light of the above, and to avoid prejudice to the veteran,
Bernard, it is the Board’s decision that further development
of this claim is in order. Accordingly, this case is hereby
remanded for the following actions:
1. A VA psychiatric examination should
be accomplished for the purpose of
ascertaining the nature and etiology of
any psychiatric disorder, including PTSD,
the veteran may currently have. The
examiner should initially be requested to
review the veteran's claim folder. It is
requested that the psychiatrist should
specifically confirm or rule out a
diagnosis of PTSD based on this
examination and the veteran’s medical and
service-related history as documented in
the claims folder. The examiner should
specify the stressor(s) believed to have
brought on the disorder. Any opinions
expressed must be accompanied by a
detailed rationale.
2. The veteran and his representative
should be given an opportunity to submit
argument and any additional evidence on
the reopened claim for entitlement to
service connection for PTSD.
3. The RO should then conduct a de novo
evaluation of the specific claim of
entitlement to service connection for
PTSD. A review of the evidence should be
undertaken with consideration given to
all evidence and arguments of record
including any relevant evidence related
to the above request. Consideration
should also be given to the provisions of
38 C.F.R. §§ 3.303 and 3.304 (f), and
all other applicable laws and
regulations.
4. In the event the decision remains
adverse to the veteran, he and his
representative should be furnished a
supplemental statement of the case and be
afforded the opportunity to respond.
Thereafter, the case should be returned to the Board after
compliance with all appropriate appellate procedure. No
action is required of the veteran until he is further
notified. The Board intimates no opinion, either legal or
factual, as to the ultimate outcome of this case pending
completion of the requested development.
RICHARD D. TURANO
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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